SIDDHARTA SEN Vs. PRABHAS KUMAR SENGUPTA

JUDGEMENT

(1.) These two appeals have been filed against the decision of the learned Additional District Judge, 9th Court, Alipore, dated 14th January, 1992, in Title Appeal No. 206 of 1991, setting aside the judgment and decree dated 23rd May, 1991, passed by the learned Additional Munsif, 1st Court, Alipore, in Title Suit No. 13 of 1990 and remanding the suit for a fresh trial on Issue No. 2 relating to service of notice of eviction on the defendant/tenant, with a direction that if such issue was answered in favour of the plaintiffs a decree for eviction should follow, and, in case tender and service was not proved the suit should be dismissed for non-service of ejectment notice which would render the suit not maintainable.

(2.) While F.M.A. No. 1052 of 1992 has been filed by the defendant No. 1/tenant in respect of the learned Lower Appellate Court's affirmation of the findings of the learned trial Court on all issues, except for issue No. 2, F.M.A. No. 440 of 1993 has been filed by the plaintiff in respect of the order of remand passed by the learned lower appellate Court with regard to issue No. 2 relating to service of notice of eviction on the defendant No. 1/tenant.

(3.) The case as made out in the plaint is that the plaintiff is the owner of premises No. 54A, Maharaja Tagore Road, under Kasba Police Station and the defendant No. 1 was a monthly tenant under him in respect of the ground floor of the premises, described in the schedule to the plaint and hereinafter referred to as the "suit premises", at a monthly rental of Rs.150/- payable according to the English Calendar. The rents for the suit premises was being collected by the defendant No. 2, Smt. Ratna Sen, the wife of the plaintiff, as his agent, for a long time and rent receipts were issued by her under the authority of the plaintiff within the knowledge of the defendant No. 1.